Interesting books, and news items about books and periodicals, particularly with respect to political and social issues. Since May, 2016, many of my larger book reviews have been put on a hosted Wordpress site; so now this blog emphasizes previews, interviews with authors, booklets, large periodical articles, and literary business issues. Note: no one pays me for these reviews; they are not "endorsements"!

Monday, August 31, 2015

John Paul Stevens: Six Amendments; a former Supreme Court justice weighs in on what should change in the US Constitution

Author: John Paul Stevens

Title: “Six Amendments: How and Why We Should Change the
Constitution”

Publication: New York, 2014: Little Brown, ISBN
978-0-316-37372-2, hardcover, 177 pages, indexed, and 32 pages are used by
reprinting the Constitution of the United States with amendments and
signatories. Amazon link is here. also available in Kindle, audible, and large print. The book comprises a Prologue and six
chapters.

The author was a justice of the United States Supreme Court,
from 1975 (appointed by President Gerald Ford, Republican) until retiring in
2010.

I was attracted to this book because, in my first “Do Ask,
Do Tell” book (1997) I had proposed two amendments to the Constitution myself,
which would have numbered as 28 and 29.
My 28th Amendment was constructed to protect personal
“privacy” (called a “Right to Privacy Amendment”) along with personal autonomy,
and focused mainly on sexual privacy (first of all, adult consensual relations,
and later abortion), and freedom of speech. I had added “29” to propose an
interim step toward gay marriage, a kind of DOMA worded in such a way as to
encourage states to experiment with introducing same-sex marriage (or at least
civil union) on their own without fear of “Full Faith and Credit”
repercussions. History would move much
more quickly on gay marriage than I had ever imagined it could in 1997.
“History” would also repeal the “don’t ask don’t tell” policy for gays in the
military by 2011, a process that seemed to be much slower and more painstaking,
but probably sped up by the post-9/11 war on terror. In fact, in the DADT-1 book I had acknowledged
the possibility of terrorism as significant, but had imagined it could come
from secular extremism from the Right (white supremacy) or Left (like North
Korea), rather than from radical Islam (or any religion), which did not command
a lot of special attention then, at least in my own mind. I had also indulged
in an informal (and long) “quasi oral argument” of how a constitutional
challenge to the military DADT policy would play out if it ever did reach the
Supreme Court. I thought such a debate could actually invoke the history of the
military draft, which I’ll come back to.

In my second DADT book (December 2002) had included a long
chapter, “Launching a ‘Bill of Rights II’”, an idea that had some word-of-mouth
currency in the late 1990s, especially in libertarian circles, somewhat as a
result, I think, of my first book and the “word of mouth” effect that was quite
effective then for a while. All of that
thinking, though, was pre-9/11. I had, in that chapter, summarized the
combinations of steps (essentially four possibilities) through which the
Constitution can be amended. (A complete
treatise is provided by the 1993 book “Contemporary Questions Surrounding the
Constitutional Amending Process” by John R. Vile, published by Praeger). I had also covered the possibility of the
return of the military draft.

At this point, recall that Justice Stevens had cast one of
the dissenting votes in Bowers v. Hardwick (1986), about the Georgia sodomy
law, as explained here and Justice Powell had voted for the majority
and later admitted he regretted the vote (maybe not knowing he had a closeted
gay clerk). Powell might have reread Stevens’s dissent. That decision would be overturned by Lawrence
v. Texas in 2003.

Now Stevens starts his book with a Prologue (almost
following Shakespeare!) and resummarizes the Constitution amending processes. He
also points out that Article V prohibits two kinds of amendments, including
anything that changes the representation of states in the Senate. His comment
would seem to suggest that, for example, if the District of Columbia or Puerto
Rico were to be given statehood, then such a state would have to be allowed
full representation in the Senate (something that makes statehood much less
likely for partisan reasons).

The substance of Stevens’s six amendments have more to do
with the integrity of the US political process and with the maintenance of
proper checks and balances among the main branches of government, and between
the federal government and states, under “federalism” – than they do with
individual rights. That said, he does take up the death penalty, and then gun
control, two topics that I did not address in my first DADT book or its
amendments. At this juncture, let me add
that a lot of the legal talk around individual rights has to do with notions
like due process (the 5th and 14th amendment’s
incorporation doctrine), and “fundamental rights”. At the end of 1998, I self-published a
booklet “Our Fundamental Rights”, not much remembered now, because it was
outside the “Do Ask, Do Tell” wordmark, but, although I talked about a right to
property (very important to libertarians), I did not take up (as a “fundamental
right”) the right to self-defense specifically – the Second Amendment question
that will build Stevens’s last chapter.

But Stevens’s approach obviously recognizes that there is
such a thing as a common good, which is why we need dependable government. He would not carry this idea as far as, say,
Rick Santorum. But his mindset admits
that there are areas where the needs of the community can mitigate the presumed
need of the individual for personal autonomy, a very important idea for me. *

Two of the six amendments would require entirely new
paragraphs; four others would add key verbiage to existing clauses in the
Constitution or existing amendments.

The first topic is the “anti-commandeering rule” subsumed by
Paragraph 2 of Article VI. Stevens argues that this interpretation can hinder
counting on the use of local or state resources in national emergencies, which
could occur with terrorism or with certain natural disasters (a huge solar
storm with its effect on the power grid could be an example). Stevens even suggests that the rule might
have hindered preventing most of the 2007 Virginia Tech shooting rampage.
Stevens talks (on p. 25ff) about the military draft (conscription) and
(implicitly) the Selective Service registration system, mentioning the
experience of World War I. In doing so,
he provides a focus on the possibility of needing to expect citizens to put
themselves in harms way for the defense of others, in a manner uncommonly seen
in modern books or political articles, outside of my own work or, say, Charles
Moskos after 9/11.

Then Stevens moves on to political gerrymandering, with a
new amendment. He points out that
gerrymandering tends to compel political candidates to take more extreme
positions than can be plausibly implemented in a normal system with democratic
capitalism.

The third topic is campaign finance reform, which goes back
to a controversial 2002 law, McCain-Feingold. The chapter gets a lot of mileage over the Citizens United movie ("Hillary, the Movie", 2008, Movies blog, March 25, 2009). Stevens apparently believes
candidates (like Trump) should not be able to spend too much of their own money
to get elected – to buy an office. It’s
obvious that he would like to reduce the influence of traditional lobbying on K
Street. That should be good for objective political speech from the media and
even amateurs, but it could raise the question as to whether the an individual
should have access to his own soap box just because he can afford it. In 2005, campaign finance reform actually got
to be seen as a threat to political blogging, even by amateurs, because
political blogs could be seen as indirect, untrackable contributions – but that
viewpoint died away when the FEC dismissed it. I got involved personally in
that aspect of the debate when I was working as a substitute teacher, a history
that I have discussed elsewhere.

The fourth topic is the most convoluted for legal lay person
– “sovereign immunity”. On p. 92, Stevens mentions the topic of lynching, as
abetted by the idea – with some focus suggestive of the work of the late Gode
Davis (the incomplete film “American Lynching”). Stevens wants an amendment to
remove an exclusion of any state or local official or government from liability
for failing to obey federal law – a concept related to nullifying the
anti-commandeering rule.

The fifth gets back more directly to individual rights – the
death penalty, which Stevens wants to see explicitly included in the definition
of “cruel and unusual punishment”. He
believes it is not a practical deterrent beyond life without parole, and that
medical unknowns exist with almost any conceivable means of execution
(particularly injection), and that the criminal justice system has convicted
innocent people (as in TV series like “The Innocence Project” (see “wrongful
convictions” label on my TV blog) or CNN’s “Death Row Stories”. More significant, Stevens does not believe
existential justice (an “eye for an eye”) for murder victims or their families
is really possible. To some extent, we all live with a shared risk of
“victimhood” as part of civilization. Yet, if that is true, then, I say, “there
are no victims, just casualties”.

The sixth and last concerns gun control and the Second
Amendment. Stevens want so add a phrase to the Second Amendment to clarify that
it applies only when a citizen is “serving in the Militia”. He points out that
the Supreme Court, in interpreting the Second Amendment (as in the Washington
DC case) to confer some individual right to self-defense even in a totally
civilian and isolated context, did limit its applicability to measures
reasonably related to legitimate self-defense, not to possession of arsenals of
foreign military assault weapons. But Stevens believes states or cities should
be allowed to ban ordinary ban ordinary gun possession in a manner similar to
Europe or Australia if there legislature choose to. Gun control advocates (like Piers Morgan)
have often argued that countries with strong gun control have much less
violence – although given the recent outbreak of “jihadist” terrorism in Europe, one wonders if this is
still true, and whether the public should count on unarmed brawny male (off
duty military) young adults to protect them from armed terrorists who have
bought weapons from crime syndicates. A deeper question might be to wonder
again what kind of risks citizens in a civilized democratic society naturally
run all the time, as if one should not expect to defend oneself against some
things.

My own take on the Second Amendment had been to agree with
the Supreme Court. Part of the reason is that we do not have “militia” today in
the sense that we did in 1791. To limit
the Second Amendment to people when (off-duty) serving in the military,
National Guard, or police force sounds meaningless, unless we look at it the
way Switzerland does. But perhaps the
idea that gun ownership should have some continual supervision (like regular
license renewal background checks, or even some kind of meaningful concomitant
community service) could make sense, as creating a “gatekeeper” function on
firearms ownership. But then just
imagine what could happen if we applied the same idea to self-distribution of
speech under the First Amendment.

Stevens’s writing style tends to be dense and detailed (like
mine), and he goes into great precision in interpreting many famous cases, even
in a brief book.

Links

About Me

Since the 1990s I have been very involved with fighting the military "don't ask don't tell" policy for gays in the military, and with First Amendment issues. Best contact is 571-334-6107 (legitimate calls; messages can be left; if not picked up retry; I don't answer when driving) Three other url's: doaskdotell.com, billboushka.com johnwboushka.com Links to my URLs are provided for legitimate content and user navigation purposes only.
My legal name is "John William Boushka" or "John W. Boushka"; my parents gave me the nickname of "Bill" based on my middle name, and this is how I am generally greeted. This is also the name for my book authorship. On the Web, you can find me as both "Bill Boushka" and "John W. Boushka"; this has been the case since the late 1990s. Sometimes I can be located as "John Boushka" without the "W." That's the identity my parents dealt me in 1943!

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